Precedent No. 41/2021/AL

On the termination of de facto marriage

Adopted by the Council of Judges of the Supreme People's Court on February 23 , 2021 and promulgated under Decision No. 42 /QD-CA dated March 12, 2021 of the Chief Justice of the Supreme People's Court .

Source of case law:

Civil Appeal Judgment No. 48/2010/DSPT dated July 29, 2010 of the Court of Appeal of the Supreme People's Court in Da Nang on the case of "Dispute over division of inheritance and division of common property" in Kon Tum province between the plaintiff, Ms. Tran Thi Trong P1, and the defendants, Mr. Tran Trong P2 and Mr. Tran Trong P3; persons with related rights and obligations including 06 people.

Location of case law:

Paragraph 3, 4 of the section “Court's Opinion”.

Overview of the case law:

- Case law:

A man and a woman live together as husband and wife without registering their marriage, but then they no longer live together and before the Law on Marriage and Family 1986 came into effect, some people lived together as husband and wife with other people. The first marriage and the second marriage are both de facto marriages.

- Legal solutions:

In this case, it must be determined that the first de facto marriage has ended.

Legal provisions relating to precedents:

- Article 676 of the 2005 Civil Code (corresponding to Article 651 of the 2015 Civil Code);

- Resolution No. 35/2000/QH10 dated June 9, 2000 of the National Assembly on the implementation of the 2000 Law on Marriage and Family;

- Resolution No. 02/2000/NQ-HDTP dated December 23, 2000 of the Council of Judges of the Supreme People's Court on guiding the application of a number of provisions of the 2000 Law on Marriage and Family.

Keywords of case law:

“De facto marriage”; “Termination of de facto marriage”.

CASE CONTENT:

According to the petition dated October 8, 2004 and the statements during the settlement of the case - Ms. Tran Thi Trong P1 (represented by Ms. Tran Thi S under authorization for the plaintiff) stated:

In 1969, Mr. Tran The T1 lived with Mrs. To Thi T2 and had two children, Tran Trong P2 and Tran Trong P3. Due to marital conflicts, Mrs. T2 left for Vung Tau to live and married someone else. In 1985, Mr. T1 lived with Mrs. Tran Thi S and had a child, Tran Thi Trong P1.

In 1987, the People's Committee of K town granted Mr. T1 an area of ​​8,500m2 ^of garden land in Ward Q (now Ward D), K town. After being granted the land, Mr. T1 and Mrs. S were still living at Mrs. S's parents' house, so they only came to plant trees on the land that had been granted. In 1993, Mr. T1 had an "application for land allocation for housing construction" stating that his family of 5 people were currently living at his wife's parents' house and requested to request a plot of land to build a house; later, Mr. T1 and Mrs. S built a house on this land. In 2000, Mr. T1 and Mrs. S again submitted an application for confirmation of house ownership, stating that the house built on the above land area belonged to Mr. and Mrs. S. On March 26, 2003 (AL), Mr. T1 died without leaving a will, and all assets were managed and used by Mr. P2 and Mr. P3.

On October 8, 2004, Ms. P1 filed a lawsuit requesting division of inheritance for the estate left by Mr. T1. In her self-declaration dated April 15, 2009, Ms. P1 withdrew her request for division of the estate for pigs, chickens, turtles and the altar and requested the Court to review and re-measure the land area, without requesting a re-evaluation.

* Ms. Tran Thi S also filed a request to divide the common property between her and Mr. Tran The T1. According to Ms. S: During the time living with Mr. T1, she and Mr. T1 created a common property including 01 level 4 house on an area of ​​36m2 ^located on a total land area of ​​8,500m2 ^{( now 6,403m2} remaining ), 01 Chinese motorbike, 02 water pumps, 450kg of curry, 05 pigs, 70 chickens, 22 rabbits, 01 fish pond, 01 tea cabinet - she requested to protect her legitimate rights. In the self-declaration dated April 15, 2009, Ms. S requested the Court to resolve the division of common property between her and Mr. T1, and at the same time divide Mr. T1's inheritance among her, Ms. P1, Mr. P2, and Mr. P3 for the remaining land area, including the land area that Mr. P3 and Mr. P2 sold to Mr. L and Mr. C.

* The defendants, Mr. Tran Trong P2 and Tran Trong P3, stated:

The above property was created by Mr. T1 and his two brothers, Mrs. S did not contribute anything so she did not agree to divide it for Mrs. S. Regarding the request to divide the inheritance for Ms. P1, Mr. P2 and Mr. P3 requested a DNA test to determine the inheritance line according to the provisions of law.

* People with related rights and obligations present:

- Mrs. To Thi T2 stated: She and Mr. T1 got married in 1969 (with a marriage certificate but lost). She and Mr. T1 had 2 children together, P2 and P3. In 1982, she moved to Vung Tau and lived with Mr. Tran Sinh D and had 3 children together. In 1985, Mr. T1 and Mrs. S lived together until 2003 when Mr. T1 died. The two also had some common assets. If she is entitled to inherit Mr. T1's estate, her share will be divided between P2 and P3.

- Mr. Chu Dinh M stated: When Mr. T1 was still alive, he borrowed 8 million VND from him. Mr. P2 and Mr. P3 have paid him back in full. Now he has no request and requests the Court to resolve the matter according to regulations.

- Ms. Lam Thi H stated: In 2002, Ms. S borrowed 17 million VND from her to repair her house and marry Mr. P3. After that, Ms. S paid back 8 million VND, now Ms. S still owes 9 million VND, requesting the Court to force Ms. S to pay back the 9 million VND.

The person with related rights and obligations, Mr. Le Van L, stated: In 1999, Mr. P2 and Mr. P3 transferred to him a plot of land 5m wide, 36m long, and 180m2 in area. ^He paid in full and received the land for use. Now he requests to continue using it.

In the Civil Judgment at First Instance No. 04/2009/DSST dated October 29, 2009, the People's Court of Kon Tum province ruled:

Pursuant to Clause 5, Article 25 of the Civil Procedure Code. Accept the petition for "Dividing inheritance" of Ms. Tran Thi Trong P1 and the petition for "Dividing common property and dividing inheritance" of Ms. Tran Thi S dated October 8, 2004, supplemented on April 15, 2009.

Pursuant to Articles 634, 636, 637, 640, 678, 679, 686; Clause 2, Article 688, Article 738, Article 739, Article 743 and Article 238 of the 1995 Civil Code, Point b, Clause 1, Article 127 of the Land Law. To decide:

Ms. Tran Thi S was divided a plot of land with an area of ​​3,201.5m2 ^worth 155,500,000 VND at 506/25 P, group 1, ward D, city K (excluding the ditch area) with the following boundaries:

The East side borders alley P, 37.66m wide.

The West borders a 37.66m wide rubber lot.

The South borders Mr. K's land, 85m long.

The North borders Mrs. S's land, 85m long.

And 01 plot of land with an area of ​​800.37m2 ⁽ excluding the ditch) has the following boundaries:

The East side borders alley P, 9.41m wide.

The West borders a 9.41m wide rubber lot.

The South borders Mrs. S's land, 85m long.

The North borders Mr. P3's house, 85m long. At number 506/25 P, city K, worth 38,875,000 VND.

Ms. S is responsible for paying Ms. Lam Thi H the amount of 9,000,000 VND.

Mr. Tran Trong P3 was divided 01 plot of land at No. 506/25 P, Ward D, City K, area 800.37m2 ⁽ excluding the ditch area) worth 38,875,000 VND with the following boundaries:

The East side borders alley P, 9.41m wide.

The West borders a 9.41m wide rubber lot.

The South borders Mrs. S's land, 85m long.

The North borders P1 land, 85m long.

Mr. P3 owns a house including 01 main house, 01 outhouse with a total area of ​​54.64m2 ^worth 9,027,022 VND, 01 Chinese motorbike worth 5 million VND, 02 water pumps worth 800,000 VND and 450kg of curry worth 5 million VND. Total 19,827,022 VND.

Mr. P3 must pay Mrs. S 8,828,628 VND.

* Ms. Tran Thi Trong P1 was divided a plot of land with an area of ​​800.37m2 ⁽ excluding the ditch area) worth 38,875,000 VND at 506/25 P, Ward D, City K with the following boundaries:

The East side borders alley P, 9.41m wide.

The West borders a 9.41m wide rubber lot.

The South borders the land, Mr. P3's house is 85m long.

The North borders P2 land, 85m long.

Ms. P1 must pay Mr. P3 4,959,372 VND and pay Ms. S 1,875,000 VND.

* Mr. Tran Trong P2 was divided 01 land plot with an area of ​​800.37m2 ⁽ excluding the ditch area) worth 38,875,000 VND at 506/25 P, group 1, ward D, city K, with the following boundaries:

The East side borders alley P, 9.41m wide.

The West borders a 9.41m wide rubber lot.

The South borders P1 land, 85m long.

The North borders Mr. T's land, 85m long.

Mr. P2 is responsible for paying Mrs. S 1,875,000 VND and Mr. P3 4,959,372 VND.

Ms. Tran Thi S, Mr. Tran Trong P2, Mr. Tran Trong P3 and Ms. Tran Thi Trong P1 have the right to go to the competent authority to carry out procedures to request a certificate of land use rights according to regulations.

In addition, the judgment of first instance also decides on court fees and announces the right to appeal.

On November 11, 2009, the defendants, Mr. Tran Trong P2 and Mr. Tran Trong P3, appealed to dismiss the plaintiff's lawsuit.

On November 12, 2009, the person with related rights and obligations, Ms. To Thi T2, appealed to request the dismissal of the plaintiff's lawsuit.

Based on the documents and evidence in the file examined at the appeal hearing, the statements of the parties and the results of the debate at the hearing.

JUDGMENT OF THE COURT:

[1] Ms. To Thi T2 lived with Mr. Tran The T1 since 1969 and had 2 children together, Tran Trong P2 and Tran Trong P3. In 1982, Ms. T2 moved to Ba Ria - Vung Tau and has lived with Mr. Tran Sinh D since then and has had 3 children together.

[2] From 1985, Mr. Tran The T1 and Ms. Tran Thi S lived together and had a child, Tran Thi Trong P1, until 2003, when Mr. T1 died.

[3] Considering that Ms. To Thi T2 lived with Mr. T1 without registering their marriage, in 1982 Ms. T2 left for Vung Tau to marry Mr. D and had a child together. Since then, the actual marriage relationship between Mr. T1 and Ms. T2 has long ended, so there are no more obligations to each other, so Ms. T2 is not entitled to the inheritance left by Mr. T1 as the first instance judgment ruled correctly.

[4] Considering that after Ms. T2 no longer lived with Mr. T1, in 1985 Mr. T1 lived with Ms. S until Mr. T1 died, had 1 child together, had legal joint property, the first instance court recognized it as a de facto marriage, so the division of joint property and the right to inherit Mr. T1's estate is well-founded.

[5] At the request of Mr. P2, Mr. P3 requested a DNA test to determine whether Ms. P1 was Mr. T1's daughter: this issue has been requested for testing, but currently Vietnamese science has not been able to separate DNA from Mr. T1's remains, so it cannot be tested. However, previously, Mr. Tran Trong P2, Mr. Tran Trong P3, and Ms. To Thi T2 also gave statements admitting that Ms. Tran Thi Trong P1 was the biological daughter of Mr. Tran The T1 (BL 52, 53, 56), which is consistent with the statements of Ms. P1 and Ms. S and other evidence such as birth certificates and witness statements. Therefore, the first instance court's acceptance of Ms. P1's right to inherit Mr. T1's estate is well-founded.

[6] In 1987, Mr. Tran The T1 was granted a garden plot in Ward Q (now Ward D) of City K by the People's Committee of Town K with an area of ​​8,500m2 ^. Currently, on the plot of land there is a level 4 house built by Mr. T1 and Ms. S and some other common properties.

[7] Considering the process of using the above land plot according to the statements of the parties as well as through verification, it is found that Mr. T1 and his children have sold it to a number of people, and at the same time, there is an irrigation canal project running through the land, so the land area is no longer the same as before. According to the on-site appraisal record dated May 12, 2005 with attached diagram, the land area that Mr. T1's family is managing is 5,610m2 ^and 540m2 ^that Mr. P2 sold to Mr. L, Mr. C, the total area is 6,150m2. ^{From then until the date of the first instance trial (October 29, 2009), the first instance court did not invite the land authority to re-measure to determine exactly how many m2} the actual area of ​​the disputed land is currently. In 2009, Ms. S also submitted a request to re-measure the land, but the first instance court did not re-measure but hastily accepted the words of Ms. S, Ms. P1, Mr. P3, Mr. P2 that the remaining land area created by Mr. T1 and Ms. S is 6,403m2 ^for division, which is not accurate and will easily lead to difficulties and congestion during the execution of the judgment. At the same time, the court of first instance has not yet asked Mr. P2 to go to the disputed land plot to measure and determine the location of the 3,000m2 land plot ^that Mr. P2 said he bought from Mr. A to consider whether it is reasonable or not. These issues cannot be resolved by the appellate court, so it is necessary to annul the first instance judgment and return the case file to the court of first instance to resolve the case again.

[8] The parties shall not be liable for civil appeal fees.

For the above reasons,

Pursuant to Clause 1, Article 277 of the Civil Procedure Code.

DECISION:

- Annul the First Instance Civil Judgment No. 04/2009/DSST dated October 29, 2009 of the People's Court of Kon Tum province.

- Transfer the case file to Kon Tum Provincial People's Court to re-settle the case according to general procedures.

- Return the advance payment of appeal fees to the litigants.

The appellate judgment takes legal effect from the date of judgment.

CONTENT OF PRECEDENT

“[3] Considering that Ms. To Thi T2 lived with Mr. T1 without registering their marriage, in 1982 Ms. T2 went to Vung Tau to marry Mr. D and had a child together. Since then, the actual marriage relationship between Mr. T1 and Ms. T2 has long ended, so there are no more obligations to each other, so Ms. T2 is not entitled to the inheritance left by Mr. T1 as the first instance judgment ruled is correct .

[4] Considering that after Ms. T2 no longer lived with Mr. T1 , in 1985, Mr. T1 lived with Ms. S until Mr. T1 died , had 1 child together, had legal joint property, the first instance court recognized it as a de facto marriage , so the division of joint property and the right to inherit Mr. T1's inheritance is well - founded .

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